G.R. No. 145368 April 12, 2002 E.O. No.
2 E.O. No. 128 also contained provisions for staff support and
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as
Ombudsman, respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued
Administrative Order No. 223 "constituting a Committee for the
preparation of the National Centennial Celebration in 1998." The
Committee was mandated "to take charge of the nationwide
preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order
No. 128, "reconstituting the Committee for the preparation of the
National Centennial Celebrations in 1988." It renamed the
Committee as the "National Centennial Commission." Appointed
to chair the reconstituted Commission was Vice-President
Salvador H. Laurel. Presidents Diosdado M. Macapagal and
Corazon C. Aquino were named Honorary Chairpersons.2
Characterized as an "i body," the existence of the Commission
"shall terminate upon the completion of all activities related to the
Centennial Celebrations."3 Like its predecessor Committee, the
Commission was tasked to "take charge of the nationwide
preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the
Inauguration of the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also
charged with the responsibility to "prepare, for approval of the
President, a Comprehensive Plan for the Centennial Celebrations
within six (6) months from the effectivity of" the Executive Order.
funding:
Sec. 3. The Commission shall be provided with technical
and administrative staff support by a Secretariat to be
composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission
for Culture and the Arts, and the National Historical
Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the
President.
Sec. 4. The Commission shall be funded with an initial
budget to be drawn from the Department of Tourism and
the president’s Contingent Fund, in an amount to be
recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be
incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial
Expo ’98 Corporation (Expocorp) was created.4 Petitioner was
among the nine (9) Expocorp incorporators, who were also its first
nine (9) directors. Petitioner was elected Expocorp Chief
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered
a privilege speech in the Senate denouncing alleged anomalies in
the construction and operation of the Centennial Exposition
Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Coseteng’s privilege speech was
referred to the Committee on Accountability of Public Officers and
Investigation (The Blue Ribbon Committee) and several other
Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued
Administrative Order No. 35, creating an ad hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its for violation of Sec. 3(e) and (g) of R.A. No. 3019, as
component activities. Former Senator Rene A.V. Saguisag was amended in relation to PD 1594 and COA Rules and
appointed to chair the Committee. Regulations;

On March 23, 1999, the Senate Blue Ribbon Committee filed with 2. That the Fact Finding and Intelligence Bureau of this
the Secretary of the Senate its Committee Final Report No. 30 Office, act as the nominal complainant.6
dated February 26, 1999. Among the Committee’s
recommendations was "the prosecution by the Ombudsman/DOJ In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-
of Dr. Salvador Laurel, chair of NCC and of EXPOCORP for Director of the Evaluation and Preliminary Investigation Bureau,
violating the rules on public bidding, relative to the award of directed petitioner to submit his counter-affidavit and those of his
centennial contracts to AK (Asia Construction & Development witnesses.
Corp.); for exhibiting manifest bias in the issuance of the NTP
(Notice to Proceed) to AK to construct the FR (Freedom Ring) On April 24, 2000, petitioner filed with the Office of the
even in the absence of a valid contract that has caused material Ombudsman a Motion to Dismiss questioning the jurisdiction of
injury to government and for participating in the scheme to said office.
preclude audit by COA of the funds infused by the government for
the implementation of the said contracts all in violation… of the
In an Order dated June 13, 2000, the Ombudsman denied
anti-graft law."5
petitioner’s motion to dismiss.
Later, on November 5, 1999, the Saguisag Committee issued its
On July 3, 2000, petitioner moved for a reconsideration of the
own report. It recommended "the further investigation by the
June 13, 2000 Order but the motion was denied in an Order
Ombudsman, and indictment, in proper cases of," among others,
dated October 5, 2000.
NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No.
6713, and Article 217 of the Revised Penal Code. On October 25, 2000, petitioner filed the present petition for
certiorari.
The Reports of the Senate Blue Ribbon and the Saguisag
Committee were apparently referred to the Fact-finding and On November 14, 2000, the Evaluation and Preliminary
Intelligence Bureau of the Office of the Ombudsman. On January Investigation Bureau issued a resolution finding "probable cause
27, 2000, the Bureau issued its Evaluation Report, to indict respondents SALVADOR H. LAUREL and TEODORO Q.
recommending: PEÑA before the Sandiganbayan for conspiring to violate Section
3(e) of Republic Act No. 3019, in relation to Republic Act No.
1594." The resolution also directed that an information for
1. that a formal complaint be filed and preliminary
violation of the said law be filed against Laurel and Peña.
investigation be conducted before the Evaluation and
Ombudsman Aniano A. Desierto approved the resolution with
Preliminary Investigation Bureau (EPIB), Office of the
respect to Laurel but dismissed the charge against Peña.
Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President
Teodoro Q. Peña and AK President Edgardo H. Angeles
In a Resolution dated September 24, 2001, the Court issued a
temporary restraining order, commanding respondents to desist
from filing any information before the Sandiganbayan or any court
against petitioner for alleged violation of Section 3(e) of the Anti-
Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner,
heard the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the
ground that he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER
LAUREL WHICH UNDERTOOK THE FREEDOM RING
PROJECT IN CONNECTION WITH WHICH VIOLATIONS OF
THE ANTI-GRAFT AND CORRUPT PRACTICES WERE
ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION,
NOT A GOVERNMENT-OWNED OR CONTROLLED
CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT
A PUBLIC OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF
EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED
UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision
in Uy vs. Sandiganbayan,9 where it was held that the jurisdiction of
the Ombudsman was limited to cases cognizable by the
Sandiganbayan, i.e., over public officers of Grade 27 and higher.
As petitioner’s position was purportedly not classified as Grade
27 or higher, the Sandiganbayan and, consequently, the
Ombudsman, would have no jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in
Uy, we held that "it is the prosecutor, not the Ombudsman, who
has the authority to file the corresponding information/s against
petitioner in the regional trial court. The Ombudsman exercises
prosecutorial powers only in cases cognizable by the
Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize
the authority of the State and regular provincial and city
prosecutors under the Department of Justice to have
control over prosecution of cases falling within the
jurisdiction of the regular courts. The investigation and
prosecutorial powers of the Ombudsman relate to cases
rightfully falling within the jurisdiction of the
Sandiganbayan under Section 15 (1) of R.A. 6770 ("An
Act Providing for the Functional and Structural
Organization of the Office of the Ombudsman, and for
other purposes") which vests upon the Ombudsman
"primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by
Section 11 (4a) of R.A. 6770 which emphasizes that the
Office of the Special Prosecutor shall have the power to
"conduct preliminary investigation and prosecute criminal
cases within the jurisdiction of the Sandiganbayan." Thus,
repeated references to the Sandiganbayan’s jurisdiction
clearly serve to limit the Ombudsman’s and Special
Prosecutor’s authority to cases cognizable by the
Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon
motion for clarification by the Ombudsman in the same case, the
Court set aside the foregoing pronouncement in its Resolution
dated March 20, 2001. The Court explained the rationale for this
reversal:
The power to investigate and to prosecute granted by law
to the Ombudsman is plenary and unqualified. It pertains
to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust,
improper or inefficient. The law does not make a
distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It
has been held that the clause "any illegal act or omission
of any public official" is broad enough to embrace any
crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by
the Sandiganbayan, particularly in Section 15(1) giving
the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4)
granting the Special Prosecutor the power to conduct
preliminary investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan, should not
be construed as confining the scope of the investigatory
and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing
the Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation
of such cases." The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of
cases involving public officers and employees by other
courts. The exercise by the Ombudsman of his primary
jurisdiction over cases cognizable by the Sandiganbayan
is not incompatible with the discharge of his duty to
investigate and prosecute other offenses committed by
public officers and employees. Indeed, it must be stressed
that the powers granted by the legislature to the
Ombudsman are very broad and encompass all kinds of
malfeasance, misfeasance and non-feasance committed
by public officers and employees during their tenure of
office.
Moreover, the jurisdiction of the Office of the Ombudsman
should not be equated with the limited authority of the
Special Prosecutor under Section 11 of RA 6770. The
Office of the Special Prosecutor is merely a component of
the Office of the Ombudsman and may only act under the
supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary
investigation and to prosecute is limited to criminal cases
within the jurisdiction of the Sandiganbayan. Certainly, the
lawmakers did not intend to confine the investigatory and
prosecutory power of the Ombudsman to these types of
cases. The Ombudsman is mandated by law to act on all
complaints against officers and employees of the
government and to enforce their administrative, civil and
criminal liability in every case where the evidence
warrants. To carry out this duty, the law allows him to
utilize the personnel of his office and/or designate any
fiscal, state prosecutor or lawyer in the government
service to act as special investigator or prosecutor to
assist in the investigation and prosecution of certain
cases. Those designated or deputized to assist him work
under his supervision and control. The law likewise allows
him to direct the Special Prosecutor to prosecute cases
outside the Sandiganbayan’s jurisdiction in accordance
with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers
and employees is one of the most important functions of
the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to
make him a more active and effective agent of the people
in ensuring accountability in public office. A review of the
 development of our Ombudsman law reveals this intent.
[Emphasis in the original.]
Having disposed of this contention, we proceed to the principal
grounds upon which petitioner relies. We first address the
argument that petitioner, as Chair of the NCC, was not a public
officer.
The Constitution10 describes the Ombudsman and his Deputies as
"protectors of the people," who "shall act promptly on complaints
filed in any form or manner against public officials or employees
of the government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations."
Among the awesome powers, functions, and duties vested by the
Constitution11 upon the Office of the Ombudsman is to
"[i]nvestigate… any act or omission of any public official,
employee, office or agency, when such act or omission appears
to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially
reproduced in R.A. No. 6770, otherwise known as the
"Ombudsman Act of 1989." Sections 13 and 15(1) of said law
respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies,
as protectors of the people shall act promptly on
complaints file in any form or manner against officers or
employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case
where the evidence warrants in order to promote efficient
service by the Government to the people.
SEC. 15. Powers, Functions and Duties. – The Office of
the Ombudsman shall have the following powers,
functions and duties:
(1) Investigate and prosecute on its own or on complaint
by any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases;
x x x.
The coverage of the law appears to be limited only by Section 16,
in relation to Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall
apply to all kinds of malfeasance, misfeasance and non-
feasance that have been committed by any officer or
employee as mentioned in Section 13 hereof, during his
tenure of office.
In sum, the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer
or employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations.12
Neither the Constitution nor the Ombudsman Act of 1989,
however, defines who public officers are. A definition of public
officers cited in jurisprudence13 is that provided by Mechem, a
recognized authority on the subject:
A public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed
by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the
sovereign functions of the government, to be exercised by
 him for the benefit of the public. The individual so invested
is a public officer.14
The characteristics of a public office, according to Mechem,
include the delegation of sovereign functions, its creation by law
and not by contract, an oath, salary, continuance of the position,
scope of duties, and the designation of the position as an office.15
Petitioner submits that some of these characteristics are not
present in the position of NCC Chair, namely: (1) the delegation
of sovereign functions; (2) salary, since he purportedly did not
receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as "[t]he most important
characteristic" in determining whether a position is a public office
or not.
The most important characteristic which distinguishes an
office from an employment or contract is that the creation
and conferring of an office involves a delegation to the
individual of some of the sovereign functions of
government, to be exercised by him for the benefit of the
public; – that some portion of the sovereignty of the
country, either legislative, executive or judicial, attaches,
for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the
individual is not a public officer.16
Did E.O. 128 delegate the NCC with some of the sovereign
functions of government? Certainly, the law did not delegate upon
the NCC functions that can be described as legislative or judicial.
May the functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The
executive power "is generally defined as the power to enforce and
administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance."17 The
executive function, therefore, concerns the implementation of the
policies as set forth by law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the
State. The State shall conserve, promote, and popularize
the nation’s historical and cultural heritage and resources,
as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation
of the Committee for the National Centennial Celebrations in
1998:
Whereas, the birth of the Republic of the Philippines is to
be celebrated in 1998, and the centennial presents an
important vehicle for fostering nationhood and a strong
sense of Filipino identity;
Whereas, the centennial can effectively showcase Filipino
heritage and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may
be insured only through long-range planning and
continuous developmental programming;
Whereas, the active participation of the private sector in
all areas of special expertise and capability, particularly in
communication and information dissemination, is
necessary for long-range planning and continuous
developmental programming;
Whereas, there is a need to create a body which shall
initiate and undertake the primary task of harnessing the
 multisectoral components from the business, cultural, and
business sectors to serve as effective instruments from
the launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National
Centennial Celebrations in 1998, cited the "need to strengthen
the said Committee to ensure a more coordinated and
synchronized celebrations of the Philippine Centennial and wider
participation from the government and non-government or private
organizations." It also referred to the "need to rationalize the
relevance of historical links with other countries."
The NCC was precisely created to execute the foregoing policies
and objectives, to carry them into effect. Thus, the Commission
was vested with the following functions:
(a) To undertake the overall study, conceptualization,
formulation and implementation of programs and projects
on the utilization of culture, arts, literature and media as
vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of
accomplishment in every Filipino in the context of the
Centennial Celebrations. In this regard, it shall include a
Philippine National Exposition ’98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major
venues;
(b) To act as principal coordinator for all the activities
related to awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and
dissemination of all information about the plans and
events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake
the implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and
structures nationwide. In this regard, the Commission
shall formulate schemes (e.g. lease-maintained-and-
transfer, build-operate-transfer, and similar arrangements)
to ensure the preservation and maintenance of the
historical sites and structures;
(f) To call upon any government agency or instrumentality
and corporation, and to invite private individuals and
organizations to assist it in the performance of its tasks;
and,
(g) Submit regular reports to the President on the plans,
programs, projects, activities as well as the status of the
preparations for the Celebration.18
It bears noting the President, upon whom the executive power is
vested,19 created the NCC by executive order. Book III (Office of
the President), Chapter 2 (Ordinance Power), Section 2 describes
the nature of executive orders:
SEC. 2. Executive Orders. – Acts of the President
providing for rules of a general or permanent character
in implementation or execution of constitutional or
statutory powers shall be promulgated in executive
orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s
economic development, especially in Central Luzon. Petitioner
himself admitted as much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
 And in addition to that expounded by Former
President Ramos, don’t you agree that the task of
the centennial commission was also to focus on
the long term over all socio economic
development of the zone and Central Luzon by
attracting investors in the area because of the
eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because
that is something I wanted to touch on by lack of
material time I could not but that is a very
important point. When I was made Chairman I
wanted the Expo to be in Batangas because I am
a Batangeño but President Ramos said Mr. Vice
President the Central Luzon is suffering, suffering
because of the eruption of Mt. Pinatubo let us try
to catalize [sic] economic recovery in that area by
putting this Expo in Clark Field and so it was done
I agreed and Your Honor if I may also mention we
wanted to generate employment aside from
attracting business investments and employment.
And the Estrada administration decided to junk
this project there 48, 40 thousand people who lost
job, they were employed in Expo. And our target
was to provide 75 thousand jobs. It would have
really calibrated, accelerated the development of
Central Luzon. Now, I think they are going back to
that because they had the airport and there are
plan to revive the Expo site into key park which
was the original plan.
There can hardly be any dispute that the promotion of
industrialization and full employment is a fundamental state
policy.20
Petitioner invokes the ruling of this Court in Torio vs.
Fontanilla21 that the holding by a municipality of a town fiesta is a
proprietary rather than a governmental function. Petitioner argues
that the "holding of a nationwide celebration which marked the
nation’s 100th birthday may be likened to a national fiesta which
involved only the exercise of the national government’s
proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the
Revised Administrative Code] simply gives authority to the
municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta
even if the purpose is to commemorate a religious or
historical event of the town is in essence an act for
the special benefit of the community and not for
the general welfare of the public performed in pursuance
of a policy of the state. The mere fact that the celebration,
as claimed, was not to secure profit or gain but merely to
provide entertainment to the town inhabitants is not a
conclusive test. For instance, the maintenance of parks is
not a source of income for the town, nonetheless it is [a]
private undertaking as distinguished from the
maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an undertaking
or function of a municipality; the surrounding
circumstances of a particular case are to be considered
and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it
is government in essence, otherwise, the function
becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in
the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing
doctrine. Note that the Court cautioned that "there can be no hard
and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will
be decisive." Thus, in footnote 15 of Torio, the Court, citing an
American case, illustrated how the "surrounding circumstances
plus the political, social, and cultural backgrounds" could produce
a conclusion different from that in Torio:
We came across an interesting case which shows that
surrounding circumstances plus the political, social, and
cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al.
was an action to recover damages for personal injuries
caused during a Fourth of July fireworks display resulting
in the death of a bystander alleged to have been caused
by defendants’ negligence. The defendants demurred to
the complaint invoking the defense that the city was
engaged in the performance of a public governmental
duty from which it received no pecuniary benefit and for
negligence in the performance of which no statutory
liability is imposed. This demurrer was sustained by the
Superior Court of New Haven Country. Plaintiff sought to
amend his complaint to allege that the celebration was for
the corporate advantage of the city. This was denied. In
affirming the order, the Supreme Court of Errors of
Connecticut held inter alia:
Municipal corporations are exempt from liability for the
negligent performance of purely public governmental
duties, unless made liable by statute….
A municipality corporation, which under permissive
authority of its charter or of statute, conducted a public
Fourth of July celebration, including a display of fireworks,
and sent up a bomb intended to explode in the air, but
which failed to explode until it reached the ground, and
then killed a spectator, was engaged in the performance
of a governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two
dissented.
At any rate the rationale of the Majority Opinion is evident
from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is
made a public holiday, called Independence Day, by our
statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a
similar provision, the different departments of the
government recognize, and have recognized since the
government was established, July 4th as a national
holiday. Throughout the country it has been recognized
and celebrated as such. These celebrations, calculated to
entertain and instruct the people generally and to arouse
and stimulate patriotic sentiments and love of country,
frequently take the form of literary exercises consisting of
patriotic speeches and the reading of the Constitution,
accompanied by a musical program including patriotic air
sometimes preceded by the firing of cannon and followed
by fireworks. That such celebrations are of advantage to
the general public and their promotion a proper subject of
legislation can hardly be questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to
commemorate the birth of our nation after centuries of struggle
against our former colonial master, to memorialize the liberation
of our people from oppression by a foreign power. 1998 marked
100 years of independence and sovereignty as one united nation.
The Celebrations was an occasion to reflect upon our history and
reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for
fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen
Filipino values." The significance of the Celebrations could not
have been lost on petitioner, who remarked during the hearing:
 Oh, yes, certainly the State is interested in the unity of the
people, we wanted to rekindle the love for freedom, love
for country, that is the over-all goal that has to make
everybody feel proud that he is a Filipino, proud of our
history, proud of what our forefather did in their time. x x
x.
Clearly, the NCC performs sovereign functions. It is, therefore, a
public office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during
his tenure is of little consequence. A salary is a usual but not a
necessary criterion for determining the nature of the position. It is
not conclusive. The salary is a mere incident and forms no part of
the office. Where a salary or fees is annexed, the office is
provided for it is a naked or honorary office, and is supposed to
be accepted merely for the public good.23 Hence, the office of
petitioner as NCC Chair may be characterized as an honorary
office, as opposed to a lucrative office or an office of profit, i.e.,
one to which salary, compensation or fees are attached.24 But it is
a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No.
128 as an "ad-hoc body" make said commission less of a public
office.
The term office, it is said, embraces the idea of tenure
and duration, and certainly a position which is merely
temporary and local cannot ordinarily be considered an
office. "But," says Chief Justice Marshall, "if a duty be a
continuing one, which is defined by rules prescribed by
the government and not by contract, which an individual is
appointed by government to perform, who enters on the
duties pertaining to his station without any contract
defining them, if those duties continue though the person
be changed, -- it seems very difficult to distinguish such a
charge or employment from an office of the person who
performs the duties from an officer."
At the same time, however, this element of continuance
can not be considered as indispensable, for, if the other
elements are present "it can make no difference," says
Pearson, C.J., "whether there be but one act or a series
of acts to be done, -- whether the office expires as soon
as the one act is done, or is to be held for years or during
good behavior."25
Our conclusion that petitioner is a public officer finds support in In
Re Corliss.26 There the Supreme Court of Rhode Island ruled that
the office of Commissioner of the United States Centennial
Commission is an "office of trust" as to disqualify its holder as
elector of the United States President and Vice-President. (Under
Article II of the United States Constitution, a person holding an
office of trust or profit under the United States is disqualified from
being appointed an elector.)
x x x. We think a Commissioner of the United States
Centennial Commission holds an office of trust under the
United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the
United States.
The commission was created under a statute of the
United States approved March 3, 1871. That statute
provides for the holding of an exhibition of American and
foreign arts, products, and manufactures, "under the
auspices of the government of the United States," and for
the constitution of a commission, to consist of more than
one delegate from each State and from each Territory of
the United States, "whose functions shall continue until
close of the exhibition," and "whose duty it shall be to
prepare and superintend the execution of the plan for
holding the exhibition." Under the statute the
commissioners are appointed by the President of the
United States, on the nomination of the governor of the
States and Territories respectively. Various duties were
imposed upon the commission, and under the statute
provision was to be made for it to have exclusive control
of the exhibit before the President should announce, by
proclamation, the date and place of opening and holding
the exhibition. By an act of Congress approved June 1st,
1872, the duties and functions of the commission were
further increased and defined. That act created a
corporation, called "The Centennial Board of Finance," to
cooperate with the commission and to raise and disburse
the funds. It was to be organized under the direction of
the commission. The seventh section of the act provides
"that the grounds for exhibition shall be prepared and the
buildings erected by the corporation, in accordance with
plans which shall have been adopted by the United States
Centennial Commission; and the rules and regulations of
said corporation, governing rates for entrance and
admission fees, or otherwise affecting the rights,
privileges, or interests of the exhibitors, or of the public,
shall be fixed and established by the United States
Centennial Commission; and no grant conferring rights or
privileges of any description connected with said grounds
or buildings, or relating to said exhibition or celebration,
shall be made without the consent of the United States
Centennial Commission, and said commission shall have
power to control, change, or revoke all such grants, and
shall appoint all judges and examiners and award all
premiums." The tenth section of the act provides that "it
shall be the duty of the United States Centennial
Commission to supervise the closing up of the affairs of
said corporation, to audit its accounts, and submit in a
report to the President of the United States the financial
results of the centennial exhibition."
It is apparent from this statement, which is but partial, that
the duties and functions of the commission were various,
delicate, and important; that they could be successfully
performed only by men of large experience and
knowledge of affairs; and that they were not merely
subordinate and provisional, but in the highest degree
authoritative, discretionary, and final in their character.
We think that persons performing such duties and
exercising such functions, in pursuance of statutory
direction and authority, are not to be regarded as mere
employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they
hold are offices. It appears, moreover, that they were
originally regarded as officers by Congress; for the act
under which they were appointed declares, section 7, that
"no compensation for services shall be paid to the
commissioners or other officers, provided for in this act,
from the treasury of the United States." The only other
officers provided for were the "alternates" appointed to
serve as commissioners when the commissioners were
unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer
delve at length on the issue of whether Expocorp is a private or a
public corporation. Even assuming that Expocorp is a private
corporation, petitioner’s position as Chief Executive Officer (CEO)
of Expocorp arose from his Chairmanship of the NCC.
Consequently, his acts or omissions as CEO of Expocorp must
be viewed in the light of his powers and functions as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not
receive any compensation for his services as NCC or Expocorp
Chair, he is not a public officer as defined in Republic Act No.
3019 (The Anti-Graft and Corrupt Practices Act) and is, therefore,
beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3
(e) of said law, which reads:
SEC. 3. Corrupt practices of public officers. – In addition
to acts or omissions of public officers already penalized
by existing law, the following shall constitute corrupt
 practices of any public officer and are hereby declared to
be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of
said law as follows:
SEC. 2. Definition of terms. – As used in this Act, the term
–
xxx
(b) "Public officer" includes elective and appointive
officials and employees, permanent or temporary,
whether in the classified or unclassified or exemption
service receiving compensation, even nominal, from the
government as defined in the preceding paragraph.
[Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a "public
officer" is expressly limited to the application of R.A. No. 3019.
Said definition does not apply for purposes of determining the
Ombudsman’s jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer
under the Anti-Graft and Corrupt Practices Act involves the
appreciation of evidence and interpretation of law, matters that
are best resolved at trial.
To illustrate, the use of the term "includes" in Section 2 (b)
indicates that the definition is not restrictive.28 The Anti-Graft and
Corrupt Practices Act is just one of several laws that define
"public officers." Article 203 of the Revised Penal Code, for
example, provides that a public officer is:
x x x any person who, by direct provision of law, popular
election or appointment by competent authority, takes part
in the performance of public functions in the Government
of Philippines, or performs in said Government or in any
of its branches public duties as an employee, agent or
subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative
Code of 1987,29 on the other hand, states:
Officer – as distinguished from "clerk" or "employee",
refers to a person whose duties not being of a clerical or
manual nature, involves the exercise of discretion in the
performance of the functions of the government. When
used with reference to a person having authority to do a
particular act or perform a particular person in the
exercise of governmental power, "officer" includes any
government employee, agent or body having authority to
do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713
(The Code of Conduct and Ethical Standards for Public Officials
and Employees), one may be considered a "public official"
whether or not one receives compensation, thus:
"Public Officials" include elective and appointive officials
and employees, permanent or temporary, whether in the
career or non-career service including military and police
 personnel, whether or not they receive compensation,
regardless of amount.

Which of these definitions should apply, if at all?

Assuming that the definition of public officer in R.A. No. 3019 is

exclusive, the term "compensation," which is not defined by said
law, has many meanings.

Under particular circumstances, "compensation" has been

held to include allowance for personal expenses,
commissions, expenses, fees, an honorarium, mileage or
traveling expenses, payments for services, restitution or a
balancing of accounts, salary, and wages.30

How then is "compensation," as the term is used in Section 2 (b)

of R.A. No. 3019, to be interpreted?

Did petitioner receive any compensation at all as NCC Chair?

Granting that petitioner did not receive any salary, the records do
not reveal if he received any allowance, fee, honorarium, or some
other form of compensation. Notably, under the by-laws of
Expocorp, the CEO is entitled to per diems and
compensation.31 Would such fact bear any significance?

Obviously, this proceeding is not the proper forum to settle these

issues lest we preempt the trial court from resolving them.

WHEREFORE, the petition is DISMISSED. The preliminary

injunction issued in the Court’s Resolution dated September 24,
2001 is hereby LIFTED.

SO ORDERED.

Puno, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), no part due to close relation to a
party.